Berntsen v. Huner — 30 N.Y.S. 540

Majority

p. 540

(10 Misc. Rep. 6.)

BERNTSEN v. HUNER.

(City Court of Brooklyn, General Term.

October 22, 1894.)

Headnote

Pleading—Misjoinder of Causes—Demurrer.

An objection that causes of action are improperly joined can be taken only by demurrer.

Appeal from trial term.

Action by Charles Berntsen against John T. Huner. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before VAN WYCK and OSBORNE, JJ.

Uriah W. Tompkins, for appellant.

■ L. H. Hurst, for respondent.

Plaintiff recovered a verdict herein for $450, and from the judgment entered thereupon, and from the order denying motion for new trial, this appeal is taken. Assuming that appellant’s contention is correct, that there are two causes of action,—one for trespass upon real estate, and the other for trespass against the person (an assault),—even then he is in no position to raise the question that they were improperly united, for he waived that objection by failing to make it upon demurrer. Code Civ. Proc. §§ 484, 488, 499. Upon the refusal of the trial court to charge a general request that, for trespass, only nominal damages can be recovered, error cannot be predicated, for it cannot be seriously insisted upon that, for trespass against the person (an assault), such a rule is correct. We think the testimony sustains the verdict, and that the verdict is not excessive. Judgment and order must be affirmed, with costs.

OSBORNE, J., concurs.